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General Terms and Conditions of Delivery and Service

Valid as per 03/2024 1. Validity

(1) All deliveries, services and offers of THEEGARTEN-PACTEC GmbH & Co.KG (hereinafter referred to as THEEGARTEN-PACTEC or also as “Supplier”) intended for foreign countries shall be made exclusively on the basis of these General Terms and Conditions of Delivery and Service for Foreign Business (hereinafter referred to as “Terms and Conditions”). The Terms and Conditions shall only apply to customers domiciled outside the Federal Republic of Germany who are acting in their professional or commercial capacity when concluding the contract (“Customer”). The German version of the “General Terms and Conditions of Delivery and Service” shall apply to business with customers domiciled in Germany. Each version shall also apply to all future deliveries, services or offers to Customer, even if they are not separately agreed upon again. They do not apply if THEEGARTEN-PACTEC and Customer have made a separate agreement, unless the respective terms of delivery are referenced there.

(2) The legal relationship between THEEGARTEN-PACTEC and Customer shall be governed solely by the contract concluded, including these Terms and Conditions. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Invalid or missing provisions shall be replaced by the statutory provisions.

(3) Terms and conditions of Customer or third parties shall not apply, even if THEEGARTEN-PACTEC does not separately object to their validity in individual cases. This applies in particular to contractual export restrictions that are not mandatory by law or governmental order, if the parties have not succeeded in effectively replacing the invalid or missing provision.

2. Offer and conclusion of contract

(1) All offers made by THEEGARTEN-PACTEC are binding only if they are so designated and include a binding period. THEEGARTEN-PACTEC may accept orders or commissions from Customer within fourteen days after the binding period, either expressly or by executing the delivery or service. The subject matter of the contract is conclusively determined by the product and service description contained in the offer and in THEEGARTEN-PACTEC’s written order confirmation. Minor deviations of the order confirmation from Customer’s order or purchase order do not prevent the execution of the delivery or service. This shall not apply to additions or deviations relating in particular to price, payment, quality and quantity of the goods, to the place and time of delivery, to the scope of liability of one party vis-à-vis the other or to the settlement of disputes.

(2) Placing of orders and further legally binding declarations must be made in writing; electronic transmission (e-mail and fax) is equivalent to the written form. This shall also apply to concordant declarations of both parties to amend or supplement the terms of the contract.

(3) Information provided by THEEGARTEN-PACTEC regarding the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are to be understood as descriptions or identifications of the delivery or service, but not as a warranty that it is or will remain suitable for the usual purpose or for a specific purpose for a certain period of time, or that it will retain special properties or characteristics. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability of the goods for the contractually intended purpose. The information contained in general product documentation and price lists shall only be binding to the extent that the contract expressly refers to them.

3. Prices and price adjustments, payment

(1) The prices apply to the scope of services and deliveries listed in the order confirmation. Additional or special services will be charged separately. Unless otherwise stated in the offer or the order confirmation, the prices are quoted in EURO free carrier including packaging, but – if applicable – plus statutory value added tax, customs duty as well as fees and other public charges.

(2) Invoice amounts are due within 14 days of the invoice date and are payable without any deductions, unless otherwise agreed in writing. The date of receipt by THEEGARTEN-PACTEC is decisive for the date of payment. In case of delayed payment, the interest rate is 9 percentage points above the prime rate of the European Central Bank. The right to assert further damages in the event of default remains unaffected.

(3) Offsetting with counterclaims of Customer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been determined legally binding and are based on the same contractual relationship.

(4) THEEGARTEN-PACTEC is entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if it becomes aware of circumstances that are likely to significantly reduce the creditworthiness of Customer.

(5) THEEGARTEN-PACTEC may require that full or partial payment of the price be made against irrevocable documentary credit on terms to be determined by THEEGARTEN-PACTEC, at Customer’s expense.

4. Delivery processing

(1) In accordance with Article 12g of Council Regulation (EU) No 833/2014 we are obliged to inform that for any goods and technology supplied by THEEGARTEN-PACTEC in the scope of annex XI, XX, XXXV, XL the buyer shall not sell, export or re-export directly or indirectly to the Russian Federation or for use in the Russian Federation. It shall be ensured that this obligation is not frustrated by any third parties further down the commercial chain. The buyer shall set up and maintain an adequate monitoring mechanism to detect conduct. Any violation of the foresaid might entail appropriate remedies including, but no limited to termination of this agreement.

(2) The respective delivery date is subject to receipt of the agreed down payment, clarification of all technical and commercial details, timely fulfillment of all cooperation obligations by Customer, and timely self-delivery by THEEGARTEN-PACTEC’s suppliers. In order to fulfill its duties to cooperate, Customer shall provide in due time all information and documents to be supplied by it (in particular regarding environmental conditions such as temperature and room height at the installation site), necessary permits and approvals, perform any preliminary work, and comply with the agreed terms of payment and other obligations assumed by it. If these requirements are not met in time, the delivery date shall be rescheduled, taking into account all circumstances present in the individual case, and THEEGARTEN-PACTEC shall be entitled to refuse delivery or performance until Customer has fully complied with its obligations to cooperate. This also applies if the reason for the delay occurs after the agreed delivery date.

(3) The respective delivery date is only binding if this has been expressly agreed by THEEGARTEN-PACTEC in the offer and in the order confirmation. If delivery time overruns become apparent, THEEGARTEN-PACTEC shall notify Customer of these immediately in writing.

(4) Unless otherwise agreed, delivery shall be “Free Carrier (FCA)” (INCOTERMS 2010).

(5) THEEGARTEN-PACTEC will pack the goods with the care that is customary in international trade. Customer shall bear the costs of disposal of the packaging, unless otherwise agreed.

(6) If Customer fails to accept the properly offered delivery or service in due time due to a breach of duty, or if Customer culpably violates other obligations to cooperate, THEEGARTEN-PACTEC shall be entitled to demand compensation for any damages incurred, including any additional expenses. THEEGARTEN-PACTEC reserves the right to claim further damages.

(7) If shipment or delivery is delayed at the request of Customer or due to any other circumstance for which Customer is responsible, THEEGARTEN-PACTEC may charge Customer storage fees in the amount of 0.5% of the invoice amount for each month or part thereof, beginning one month after notification of readiness for shipment; the storage fees shall be limited to 5% of the invoice amount, unless higher costs are proven. This shall not apply if Customer proves that the costs of storage were lower. The right to claim remuneration for the storage of raw materials or components shall remain unaffected.

(8) Risk of loss shall pass to Customer if shipment or delivery is delayed at Customer’s request or for reasons for which Customer is responsible, or if THEEGARTEN-PACTEC exercises a right of retention.

(9) In case of delivery of goods that are not subject to the functional and acceptance tests pursuant to clause 5 below (e.g. consumables or spare parts), Customer shall inspect the goods immediately upon delivery and notify THEEGARTEN-PACTEC immediately of any visible defects and transport damage. If Customer fails to notify THEEGARTEN-PACTEC, the goods shall be deemed to have been accepted, unless the defect was not recognizable during the inspection. If such a defect is discovered later, the notification must be made immediately after discovery; otherwise the goods shall be deemed approved also in view of this defect.

5. Function and acceptance tests

(1) When packaging machines or systems (“System”) are delivered, a functional test (Factory Acceptance Test (FAT)) of the System shall be carried out at the manufacturing site at THEEGARTEN-PACTEC in Dresden and an acceptance test (Site Acceptance Test (SAT)) shall be carried out at the installation site specified by Customer. Functional and acceptance tests are each carried out during regular working hours in accordance with the agreed upon test conditions.

(2) THEEGARTEN-PACTEC will notify Customer in writing of the date of the FAT in sufficient time for Customer to be represented at the tests. If the System is found to be defective at the FAT, THEEGARTEN-PACTEC will correct any defects within a reasonable period of time to make the System into compliance with the contract. Any deficiencies will be noted in an OP list, and THEEGARTEN-PACTEC will provide evidence of the rectification of aforementioned deficiencies during the acceptance test at the latest. Customer may request a repetition of the FAT only in cases of significant defects. THEEGARTEN-PACTEC shall bear all costs for the functional tests performed at the place of manufacture prior to shipment of the System. However, Customer shall pay for its representatives all travel and lodging expenses incurred in connection with the functional test. Upon THEEGARTEN-PACTEC’s request, Customer is obliged to issue and sign a corresponding certificate (possibly enclosing the OP list) after a successful functional test.

(3) Upon completion of the installation at the installation site designated by Customer, THEEGARTEN-PACTEC shall notify Customer that the System is ready for acceptance (SAT). If the system has been proven to comply with the contractually agreed specification in all essential points when the SAT is carried out,
Customer is obliged to accept the System and to sign a corresponding acceptance protocol. If the System does not comply with the contractually agreed specification in all essential points when the SAT is carried out, THEEGARTEN-PACTEC shall remedy major defects and repeat the SAT in whole or in part. Otherwise, minor deficiencies will be documented in an OP list and subsequently corrected by THEEGARTEN-PACTEC. Acceptance of the System by Customer is deemed to have occurred upon the occurrence of the earliest of the following events: (i) successful performance of the SAT in accordance with the contractual agreements; (ii) commercial use of the System for more than a total of 5 days; (iii) lapse of the agreed date of the acceptance test by more than 30 calendar days for reasons attributable to Customer, including Customer’s breach of the above obligations.

6. Cooperation obligations of Customer

(1) Customer is obligated to timely complete the necessary preparatory work for the performance of the Site Acceptance Test at the installation site or the provision of services by THEEGARTEN-PACTEC so that the conditions necessary for the installation, maintenance or repair of the equipment and its proper use are met.

(2) Customer shall ensure that
a) THEEGARTEN-PACTEC’s personnel have the opportunity to start the work immediately according to the agreed schedule and to work during regular working hours. The work may also be performed outside regular working hours to the extent deemed necessary by THEEGARTEN-PACTEC and provided that Customer has been informed thereof in writing within a reasonable period of time.
b) THEEGARTEN-PACTEC will be informed in writing and in good time before the start of installation of all relevant safety regulations that apply at the installation site. The installation shall not be carried out in an unhealthy or hazardous environment. All necessary safety and protective measures shall be taken prior to the start of the installation and maintained during the installation. In addition, Customer undertakes to comply with the applicable statutory data protection provisions when dealing with THEEGARTEN-PACTEC personnel.
c) THEEGARTEN-PACTEC shall be provided, free of charge and on time, with the manpower required to perform the acceptance tests, as well as all necessary materials (in particular product samples according to agreed specifications in sufficient quantities), equipment and devices, as well as measuring and testing devices of Customer, unless these are to be provided by THEEGARTEN-PACTEC. In addition, Customer shall ensure the operability of the upstream and downstream equipment. THEEGARTEN-PACTEC will inform Customer in writing in due time before the start of installation which materials and equipment are to be provided by Customer. If it is agreed that Customer will provide its own support staff (including those of third party service providers, if any), THEEGARTEN-PACTEC is authorized to give technical instructions to these support staff to the extent necessary, but is not authorized to give disciplinary instructions. Customer’s support staff are subject exclusively to Customer’s right of direction, supervision, responsibility and insurance obligation. If Customer’s support staff cause any damage, THEEGARTEN-PACTEC is liable for such damage only if it is itself at fault.
d) THEEGARTEN-PACTEC shall be provided free of charge with adequate office space at the installation site, equipped with telephone and internet connection.
Upon request, Customer shall, at its own expense, provide THEEGARTEN-PACTEC with comprehensive support in the import and re-export of THEEGARTEN-PACTEC’s equipment and tools; this shall also apply with regard to customs formalities.

(3) If the Customer fails to fulfill its obligations required for the performance of the installation, in particular in accordance with the preceding paragraphs, the following shall apply, without prejudice to further rights of THEEGARTEN-PACTEC:
a) THEEGARTEN-PACTEC may fulfill Customer’s obligations itself or have them fulfilled by a third party or take other measures appropriate under the circumstances to avoid or limit the effects of Customer’s non-fulfillment,
b) THEEGARTEN-PACTEC may discontinue performance of its contractual obligations in whole or in part upon notice to Customer.
c) THEEGARTEN-PACTEC may invoice the portion of the contract price due upon successful SAT, and Customer agrees to pay the pro-rated contract price.
d) Customer shall compensate THEEGARTEN-PACTEC for all reasonable costs incurred by THEEGARTEN-PACTEC as a result of the foregoing.

(4) If the Site Acceptance Test is prevented from being performed due to Customer’s failure to perform in accordance with the preceding section, and if this is not due to force majeure, THEEGARTEN-PACTEC may set a final reasonable deadline in writing for Customer to perform its obligations. If, for any reason beyond THEEGARTEN-PACTEC’s control, Customer fails to perform its obligations within the time limit set, THEEGARTEN-PACTEC shall be entitled to rescind the contract in whole or in part by written notice to Customer. THEEGARTEN-PACTEC shall then be entitled to compensation for the damage it has suffered as a result of Customer’s failure to perform; this shall also apply to indirect and consequential damage.

7. Special Provisions for the rendering of Services

(1) Personnel and scope of Services. THEEGARTEN-PACTEC undertakes to use only qualified specialist personnel to complete service orders, who will carry out the work properly and appropriately. Customer has no right to allocation of specific personnel by THEEGARTEN-PACTEC. As a matter of principle, THEEGARTEN-PACTEC personnel may only be designated for work on machines and equipment supplied by THEEGARTEN-PACTEC and within the scope of the service order issued in writing. Activities that exceed the agreed scope of services require the prior written consent of THEEGARTEN-PACTEC.

(2)Provision of the Services. Customer will immediately inform THEEGARTEN-PACTEC of any impending delay or prevention regarding the services – regardless of the reason. If an agreed service is postponed for reasons for which Customer is responsible, THEEGARTEN-PACTEC may demand reimbursement of the additional costs incurred by it (e.g. additional travel expenses and waiting time). If the performance of the services involves a risk to life and limb of the personnel, THEEGARTEN-PACTEC is entitled to postpone the start of the services until such risk is under reasonable control. If the services must be interrupted for an unreasonable period of time, THEEGARTEN-PACTEC is entitled to withdraw its personnel. Any costs incurred as a result will be borne by THEEGARTEN-PACTEC only if it is responsible for the interruption. If the services have to be discontinued prematurely as a result of force majeure, THEEGARTEN-PACTEC is entitled to charge all costs incurred up to that point, including those of the return trip.

(3) Acceptance. As soon as THEEGARTEN-PACTEC indicates the completion of the services, Customer undertakes to immediately accept the services in the agreed form. Acceptance shall be confirmed in writing on the service protocol. If the services prove not to be in accordance with the contract, THEEGARTEN-PACTEC is entitled and obligated to remedy the non-conformity at its own expense. Customer cannot refuse acceptance if the non-conformity is insignificant or due to a circumstance that is not attributable to THEEGARTEN-PACTEC. If acceptance is delayed through no fault of THEEGARTEN-PACTEC, acceptance is deemed to have taken place two weeks after notification of completion of the services. Upon acceptance, THEEGARTEN-PACTEC’s liability for recognizable defects shall cease, unless Customer has reserved the right to assert a specific defect.

(4) Remuneration. THEEGARTEN-PACTEC charges daily or hourly rates for the deployment of its personnel in accordance with the then current price list. In the case of service orders executed at a fixed price, additional services beyond the agreed scope will be invoiced on a time and materials basis. Hourly and daily rates or agreed amounts are exclusive of statutory value added tax. The performance of overtime as well as work during Saturdays, Sundays, holidays and night hours requires the prior written consent of THEEGARTEN-PACTEC. In case of incapacity for work, the calculation of the service costs does not apply from the time of the occurrence of the incapacity for work. If the regular weekly working hours are not reached for reasons for which THEEGARTEN-PACTEC is not responsible, the lost time will be charged at the regular, agreed hourly rate. Working hours lost due to legal and special holidays as well as waiting hours will also be charged at the same hourly rate. THEEGARTEN-PACTEC obligates its personnel to keep a weekly record of hours worked, separated into normal, overtime and night hours. This record serves as the basis for THEEGARTEN-PACTEC’s calculation and must be checked and signed off by Customer. If no adequate accommodation or catering facilities are available for the personnel in the vicinity of the installation site, Customer shall bear all corresponding costs, i.e. in particular the costs for the use of suitable means of transport. The travel time of the personnel shall be considered working time and shall be invoiced at the normal hourly rate per hour of travel.

(5) Travel and Transportation Costs. In addition to the costs specified in the applicable price list, THEEGARTEN-PACTEC shall charge all other costs for outward and return travel or further travel in connection with the provision of its services. In addition, it may charge for all necessary incidental travel expenses (tool and luggage transportation, etc.) and expenses incurred in connection with the services (such as business communication fees and local travel, including rental cars).

(6) Liability. THEEGARTEN-PACTEC shall be liable for any defects in the work within a period of twelve months after acceptance of the services. Customer shall notify THEEGARTEN-PACTEC immediately in writing of any detected defect. THEEGARTEN-PACTEC’s warranty is limited exclusively to the obligation to rectify a defect at the location where the services were performed. If multiple attempts to remedy the defect have not remedied the defect, Customer is entitled to a corresponding reduction of the remuneration after the unsuccessful expiration of a reasonable grace period. If the services are demonstrably of no interest to Customer despite a reduction, Customer may withdraw from the contract after providing written notice.

8. Software

(1) If THEEGARTEN-PACTEC’s delivery includes computer software, the following applies to Customer’s right to use the software:
Customer acquires the non-exclusive right to use the software only for the use of the System. Customer may transfer this right of use to subsequent owners or lessees of the System. THEEGARTEN-PACTEC reserves the intellectual property rights to the software, even if this software was produced specifically for Customer. Customer is not entitled to make any changes to the software. THEEGARTEN-PACTEC is not obliged to provide the source code for the software.

(2) For sublicensed software for which THEEGARTEN-PACTEC has received permission to use from third parties, Customer acquires the non-exclusive right to use the sublicensed software only for the use of the System and to transfer this right of use to subsequent owners or lessees of the System, subject to any restrictions agreed between THEEGARTEN-PACTEC and the owner of the intellectual property rights. THEEGARTEN-PACTEC will inform Customer in writing of any further restrictions before the contract for delivery of the System is concluded. If THEEGARTEN-PACTEC fails to inform Customer of such restrictions, THEEGARTEN-PACTEC will indemnify Customer against any claims by third parties arising from Customer’s use of the sublicensed software in violation of such restrictions.

(3) Unless otherwise agreed, THEEGARTEN-PACTEC’s delivery obligation is limited to the software supplied and does not include updates.

(4) THEEGARTEN-PACTEC shall indemnify and hold Customer harmless, in accordance with the provisions of this Section 8, from any claims by third parties arising from the infringement of copyrights or other intellectual property rights existing at the time of delivery by Customer’s use of the computer software.

(5) However, THEEGARTEN-PACTEC shall not be liable for any claims based on Customer’s use of the Software in a manner or location that was not agreed upon and that THEEGARTEN-PACTEC could not reasonably have anticipated, or for any modifications made to the Software by Customer. THEEGARTEN-PACTEC is solely responsible for the defense against claims of third parties for copyright infringement. Customer shall indemnify and hold THEEGARTEN-PACTEC harmless from any amounts Customer is obligated to pay pursuant to a settlement to be approved by THEEGARTEN-PACTEC or pursuant to a final judgment. However, THEEGARTEN-PACTEC shall only be liable if Customer has informed THEEGARTEN-PACTEC immediately in writing of all claims received by it and THEEGARTEN-PACTEC has had the primary right to settle any dispute. If the foregoing conditions are fulfilled, THEEGARTEN-PACTEC will, at its option, within a reasonable period of time:
– procure for Customer the right to continue using the software,
– modify the software to remedy the infringement, or
– replace the software with other non-infringing software with the same function.
Except as provided in this Section 8, THEEGARTEN-PACTEC shall not be liable to Customer for any infringement of third party rights caused by Customer’s use of the software, unless THEEGARTEN-PACTEC has acted in gross negligence or willful misconduct.

9. Retention of Title

(1) The goods remain the property of THEEGARTEN-PACTEC until the purchase price has been paid in full, provided that such retention of title is effective under the applicable law.

(2) Customer is obliged to take all necessary measures to preserve this retention of title or a functionally equivalent security interest recognized in the country of destination (customer’s registered office). If Customer violates this obligation, this shall constitute a material breach of contract.

(3) The agreement on retention of title shall not affect the provisions on the transfer of risk within the meaning of these Terms and Conditions.

10. Warranty

(1) THEEGARTEN-PACTEC shall remedy any material non-conformity of the System or goods resulting from a defect in design, material or workmanship (“Defects”) at its option by repair or replacement. THEEGARTEN-PACTEC shall only be liable for such Defects that occur under the contractually intended operating conditions and during demonstrably proper use of the System or the goods.

(2) THEEGARTEN-PACTEC shall not be liable for defects that are
a) are based on materials provided by Customer or a design prescribed or specified by Customer, or
b) are due to circumstances occurring after the transfer of risk, such as natural wear and tear, defects due to incorrect operation, insufficient cleaning, inadequate maintenance or faulty repair by Customer, or to modifications to the System and products without the written consent of THEEGARTEN-PACTEC.

(3) THEEGARTEN-PACTEC’s liability is limited to Defects in the goods or System that occur within one year of delivery in the case of delivery of goods or, in the case of delivery of a System, within one year of the date of the SAT passed. If the date of the SAT is delayed for reasons for which THEEGARTEN-PACTEC is not responsible, claims of Customer for warranty shall become statute-barred at the latest after 8,000 operating hours or 15 months after delivery of the system to Customer.

(4) Customer must immediately notify THEEGARTEN-PACTEC in writing of any Defect that occurs. The complaint must describe the defect. If Customer fails to notify THEEGARTEN-PACTEC of the Defect as provided herein, Customer shall forfeit its right to have the defect corrected. If the Defect could cause further damage, Customer shall immediately notify THEEGARTEN-PACTEC thereof in writing. Customer shall bear the risk for any damage to the System or goods resulting from failure to give such notice. Customer shall take reasonable measures to mitigate the damage and, to that extent, comply with THEEGARTEN-PACTEC’s instructions.

(5) Upon receipt of a timely and proper notice of defect, THEEGARTEN-PACTEC shall remedy the Defect within a reasonable period of time and at its own expense. In principle, the Defect shall be remedied at the place of installation, unless THEEGARTEN-PACTEC, after weighing the interests of both parties, deems it more appropriate to return the defective goods to THEEGARTEN-PACTEC. If the Defect can be remedied by replacement or repair of a defective component and the removal and installation of the component does not require special expertise, THEEGARTEN-PACTEC may request shipment of the defective component itself. In this case, THEEGARTEN-PACTEC’s obligation with respect to the defect ends with the delivery of the properly repaired or replaced component to Customer.

(6) Customer shall, at its own expense, provide for access to the System and for any intervention with respect to equipment that is not part of the System to the extent necessary to correct the Defect.

(7) Customer shall bear any additional costs incurred by THEEGARTEN-PACTEC in remedying the Defect due to the fact that the location of the System is different from the installation or delivery location. Replaced defective parts shall be made available to THEEGARTEN-PACTEC and become its property. If Customer has notified THEEGARTEN-PACTEC of a Defect and if no defect is found for which THEEGARTEN-PACTEC is liable, Customer shall reimburse THEEGARTEN-PACTEC for any costs incurred by THEEGARTEN-PACTEC as a result of such analysis.

(8) If the Defect consists in the infringement of third party patents, THEEGARTEN-PACTEC may, at its option, procure for Customer the rights of use necessary to use the System or modify the System so that no third party patent rights are infringed.

(9) If THEEGARTEN-PACTEC fails to remedy a reported and actually existing Defect in breach of its obligations, Customer may set THEEGARTEN-PACTEC a final reasonable deadline in writing, within which THEEGARTEN-PACTEC must comply with its obligations. If THEEGARTEN-PACTEC again fails to fulfill its obligations within this deadline, Customer may make the necessary repairs itself or have them made by a third party at THEEGARTEN-PACTEC’s expense and risk. If the repair has been successfully carried out by Customer or a third party, all claims of Customer regarding this Defect against THEEGARTEN-PACTEC are settled with reimbursement of the reasonable costs incurred by Customer.

(10) If the rectification fails, Customer may:
a) demand a reduction in the contract price commensurate with the diminished value of the System, provided that in no event shall the reduction exceed 15% of the contract price; or
b) withdraw from the contract with respect to that part of the System which cannot be used as intended due to the Defect by written notice to THEEGARTEN-PACTEC, provided that the Defect is so fundamental that Customer loses its interest in the contract with respect to the System or a substantial part thereof. Customer shall then be entitled to compensation for its loss up to an amount not exceeding 15% of the contract price corresponding to the part of the System with respect to which it has withdrawn from the contract.

(11) Unless otherwise stipulated, THEEGARTEN-PACTEC shall not be liable for consequential damages caused by a Defect. This applies to any damage caused by the Defect, such as loss of production, loss of profit and other indirect damage. This limitation of THEEGARTEN-PACTEC’s liability does not apply in cases of intent or gross negligence. In all other respects, THEEGARTEN-PACTEC’s liability for damages shall be governed by clause 11.

11. General liability and liability insurance

(1) THEEGARTEN-PACTEC’s liability for damages – in particular for consequential economic loss due to delayed delivery or a lack of conformity of the delivery or service – is excluded, unless it is based at least on gross negligence or intent or THEEGARTEN-PACTEC has fraudulently concealed the non-compliance from Customer.

(2) THEEGARTEN-PACTEC’s liability under applicable and mandatory product liability legislation remains unaffected.

(3) THEEGARTEN-PACTEC shall take out or maintain liability insurance with extended product liability incl. recall damages to the extent customary in the industry. Upon request, THEEGARTEN-PACTEC may provide evidence of the existing insurance coverage to Customer.

(4) Section 10 (3) shall apply mutatis mutandis to the statute of limitations for claims for damages, with the proviso that the limitation period shall commence at the time at which Customer becomes aware of the circumstances giving rise to the claim or should have become aware without gross negligence.

12. Force majeure

(1) Impediments to delivery and acceptance as a result of natural disasters, war, industrial action, lack of raw material supply or other cases of force majeure at the own plants or supplier companies as well as by governmental orders or measures or by other circumstances which cannot be averted by the parties or which cannot be averted or compensated for even with a reasonable technical and economic effort based on due diligence customary in the industry and which prevent the parties from fulfilling their obligations in whole or in part shall release both parties from the performance of the contract to this extent until the force majeure ceases to exist. The party affected by a force majeure event shall inform the other party thereof without delay. If the resulting delays exceed the period of six (6) months, both parties shall be entitled to withdraw from the contract with regard to the affected scope of performance.

(2) The impossibility of a sufficient supply of raw and auxiliary materials or other supplies and services required by THEEGARTEN-PACTEC to fulfill its obligations to Customer shall be deemed equivalent to a case of force majeure.

13. Reservation of rights

The ownership or copyright to all offers and cost estimates submitted by THEEGARTEN-PACTEC, as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents made available to Customer, shall remain with THEEGARTEN-PACTEC and shall not be transferred to Customer. Customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them itself or through third parties, or reproduce them without the express consent of THEEGARTEN-PACTEC. At the request of THEEGARTEN-PACTEC, Customer must return these items in their entirety to THEEGARTEN-PACTEC and destroy any copies made if they are no longer needed by Customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract, except for one copy that Customer may retain for archival purposes only.

14. Third party property rights

THEEGARTEN-PACTEC and Customer mutually assure each other that their respective contributions to be made independently within the scope of the cooperation do not violate any intellectual property rights of third parties. If a third party nevertheless asserts justified claims against a party based on an infringement of intellectual property rights that originates in the other party’s area of risk, the other party shall either remedy the infringement of intellectual property rights or indemnify the party against which a claim is asserted against the consequences of the claim. The obligation to indemnify shall be subject to the proviso that (i) only legally established damages shall be indemnified, (ii) litigation and settlement negotiations must be left to the responsible party, i.e. the party from whose area of risk the intellectual property right infringement originates, (iii) the party against whom a claim is made must fully support the responsible party in defending the claims, and (iv) the conclusion of a settlement shall in any case require the consent of the responsible party.

15. Final provisions

(1) The validity of THEEGARTEN-PACTEC’s offer and the resulting contracts may be subject to the issuance of a government export license. In the event that such a license or end-use statement is required, Customer shall promptly provide THEEGARTEN-PACTEC with such document upon written request. In case the delivery is restricted or prohibited due to export control laws, Customer’s rights and obligations shall be suspended for the duration of such laws and the relevant contract may be terminated by THEEGARTEN-PACTEC without compensation.

(2) The place of performance is the registered office of THEEGARTEN-PACTEC. The Regional Court of Dresden shall be responsible for all disputes arising from this contract. However, THEEGARTEN-PACTEC may also take legal action against Customer at its place of business.

(3) THEEGARTEN-PACTEC is entitled to use subcontractors at its own expense. The use of a subcontractor does not release THEEGARTEN-PACTEC from its contractual obligations. Subcontractors are not considered vicarious agents of THEEGARTEN-PACTEC. The same applies to suppliers.

(4) The contractual relationship between THEEGARTEN-PACTEC and Customer are subject to the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG). This also applies to the delivery of movable goods to be manufactured or produced according to Customer’s specifications. Legal questions which are not regulated in the CISG or which cannot be decided according to its principles are subject to Swiss substantive law. This applies in particular even if THEEGARTEN-PACTEC has to provide services that are not governed by laws applicable to the sale of goods.

(5) Should any provision of these Terms and Conditions or of a contract concluded on the basis thereof be or become invalid, this shall not affect the validity of the remaining provisions. The parties shall replace the invalid provision by a valid provision which comes as close as possible to the intended economic purpose of the invalid provision. The same shall apply to any loopholes in the contract.

Note: Customer acknowledges that THEEGARTEN-PACTEC stores data from the contractual relationship in accordance with Art. 6 DSGVO for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for the performance of the contract. For more information, please refer to our separately available data subject information.